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EXHIBIT 4.22
REGISTRATION RIGHTS AGREEMENT
AGREEMENT made as of the _____ day of ________________, 1998, by and
among IXC Communications, Inc., a Delaware corporation (the "Company"),
[___________________], [__________________] and [__________________]
(collectively, the "Sellers").
W I T N E S S E T H:
WHEREAS, the Company and the Sellers are parties to a Purchase
Agreement, dated ______________, 1998 (the "Purchase Agreement") pursuant to
which the Company has issued to the Sellers an aggregate of ________ shares of
Common Stock and warrants (the "Warrants") to purchase an aggregate of 75,000
shares of Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall be used in this Agreement with
the following respective meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means and includes (a) the Company's Common Stock, $0.01
par value per share, as authorized on the date of this Agreement and (b) any
other securities into which or for which the securities described in (a) above
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, share exchange, sale of assets or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor Federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Exchange Act) thereunder, all
as the same shall be in effect at the time.
"Holder" means any holder of Registrable Stock.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any natural person, partnership, limited liability
company, corporation or other legal entity.
"Registrable Stock" means (a) the Common Stock issued pursuant to the
Purchase Agreement and the Common Stock issued or issuable upon exercise of the
Warrants, whether or not such Common Stock is owned by any of the Sellers, and
(b) any other shares of Common Stock issued in respect of such shares by way of
a stock dividend, or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, share exchange or
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reorganization; provided, however, Common Stock held by any Person will cease to
be Registrable Stock upon the earlier of the following events: (i) following
sale thereof pursuant to the Registration Statement or (ii) when the Registrable
Stock held by such Person is then immediately salable in accordance with Rule
144(k) under the Securities Act (assuming for this purpose that the Person is
not an affiliate of the Company).
"Registration Statement" means the registration statement on Form S-3 or
such other form as the Company is eligible to use which is filed by the Company
with the Commission in accordance with the Purchase Agreement pertaining to the
resale of the Registrable Stock.
"Securities Act" means the Securities Act of 1933, or any successor
Federal statute, and the rules and regulations of the Commission (or of any
other Federal agency then administering the Securities Act) thereunder, all as
the same shall be in effect at the time.
2. Effectiveness of Registration Statement. The Company represents and
warrants that the Registration Statement is effective under the Securities Act,
and no stop order has been issued and no proceedings for that purpose have been
instituted and are pending or, to the knowledge of the Company, are contemplated
by the Commission.
3. Registration Covenants. The Company will, at its expense, as
expeditiously as possible:
(a) Subject to Permitted Interruptions and Necessary
Interruptions (as defined below), in accordance with the Securities Act
and the rules and regulations of the Commission, use its best efforts to
cause the Registration Statement to remain effective as long as
Registrable Stock is outstanding, and prepare and file with the
Commission such amendments to the Registration Statement (and use its
best efforts to cause post-effective amendments to become and remain
effective) and supplements to the prospectus contained therein as may be
necessary to keep the Registration Statement effective and the
Registration Statement and prospectus accurate and complete until the
Registrable Stock covered by the Registration Statement has been sold;
(b) If the offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance
reasonably satisfactory to the managing underwriter, if any, of the
public offering and the Holders participating in such offering;
(c) Furnish to the participating Holders and to the underwriters
such reasonable number of copies of the Registration Statement
(including all exhibits thereto), preliminary prospectus, final
prospectus and such other documents as such underwriters and
participating Holders may reasonably request in order to facilitate the
public offering of such securities;
(d) Use its best efforts to register or qualify the securities
covered by such Registration Statement under such state securities or
blue sky laws of such jurisdictions (i) as shall be reasonably
appropriate for the distribution of the securities covered by such
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Registration Statement or (ii) as such participating Holders and
underwriters may reasonably request, except that the Company shall not
for any purpose be required to execute a general consent to service of
process, to subject itself to taxation, or to qualify to do business as
a foreign corporation in any jurisdiction where it is not so qualified;
(e) Notify the Holders promptly after it shall receive notice
thereof, of the date and time when such Registration Statement and each
post-effective amendment thereto has become effective or a supplement to
any prospectus forming a part of such Registration Statement has been
filed;
(f) Notify the Holders promptly of any request by the Commission
or any state securities commission or agency for the amending or
supplementing of such Registration Statement or prospectus or for
additional information;
(g) Subject to Permitted Interruptions and Necessary
Interruptions, prepare and file with the Commission, promptly upon the
request of any Holders, any amendments or supplements to such
Registration Statement or prospectus which is required under the
Securities Act or the rules and regulations thereunder in connection
with the distribution of the Registrable Stock by such Holders;
(h) Subject to Permitted Interruptions and Necessary
Interruptions, prepare and promptly file with the Commission, and
immediately notify such Holders of the need to file and of the filing
of, such amendments or supplements to such Registration Statement or
prospectus as may be necessary to correct any statements or omissions
if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(i) Subject to Permitted Interruptions and Necessary
Interruptions, in case any of such Holders or any underwriter for any
such Holders is required to deliver a prospectus at a time when the
prospectus then in circulation is not in compliance with the Securities
Act or the rules and regulations of the Commission, prepare promptly
upon request such amendments or supplements to such Registration
Statement and such prospectus as may be necessary in order for such
prospectus to comply with the requirements of the Securities Act and
such rules and regulations;
(j) Advise such Holders, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the
Commission or any state securities commission or agency suspending the
effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
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(k) Use its best efforts to ensure the obtaining of all
necessary approvals from the NASD;
(l) Cooperate with the Holders to facilitate the timely
preparation and delivery (under normal way settlement procedures) of
certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior
to sales of securities pursuant to such Registration Statement; and
(m) Use its best efforts to comply with all applicable rules and
regulations of the Commission and shall make generally available as soon
as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Securities Act.
4. Expenses.
(a) All fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith shall be
borne by the Company; provided, however, that Holders participating in
any such registration shall bear their pro rata share of the
underwriting discounts and selling commissions and shall be responsible
for any fees and disbursements of counsel for any such Holder.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, and all legal
fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities
to be offered are to be registered or qualified.
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5. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Holder of
shares of Registrable Stock which are included in the Registration
Statement pursuant to the provisions of this Agreement, the directors,
officers, employees and agents of such Holder, any underwriter (as
defined in the Securities Act) for such Holder, the directors, officers,
employees and agents of such underwriter, and any Person who controls
such Holder or such underwriter within the meaning of the Securities Act
or the Exchange Act, and each of their successors, from and against any
and all claims, actions, demands, losses, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such claims,
actions, demands, losses, damages or liabilities arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement (including all
documents incorporated therein by reference) as originally filed or in
any amendment thereto, any preliminary or final prospectus contained
therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of or are based on any violation or
alleged violation of any federal, state or common law rule or regulation
applicable to the Company and agrees to reimburse each such Holder, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such claim, action,
demand, loss, damage or liability; provided, however, that the Company
will not be liable in any such case to the extent that any such claim,
action, demand, loss, damage, or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in reliance upon and in conformity with
information furnished by such Holder, such underwriter or such
controlling Person in writing specifically for use in the preparation
thereof. This indemnity shall be in addition to any liability which the
Company may otherwise have and shall be in addition to any subsequently
executed indemnity agreements.
(b) Each Holder of shares of the Registrable Stock which are
included in the Registration Statement will, severally and not jointly,
indemnify and hold harmless the Company, the directors, officers,
employees and agents of the Company and any person who controls the
Company within the meaning of the Securities Act or the Exchange Act
from and against any and all claims, actions, demands, losses, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such claims, actions, demands, losses, damages or
liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement (including all documents incorporated therein by
reference) as originally filed or in any amendment thereto, any
preliminary or final prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
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in each case to the extent, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission
was so made in reliance upon and in conformity with written information
furnished by such Holder for use in the preparation thereof; provided,
that the liability of each Holder hereunder shall be limited to the
proportion of any such claim, action, demand, loss, damage, liability,
cost or expense which is equal to the proportion that the public
offering price of the shares of Registrable Stock sold by such Holder
under such Registration Statement bears to the total offering price of
all shares of Registrable Stock sold thereunder, but not, in any event,
to exceed the proceeds received by such Holder from the sale of shares
of Registrable Stock covered by the Registration Statement. This
indemnity shall be in addition to any liability which such Holder may
otherwise have and shall be in addition to any subsequently executed
indemnity agreements.
(c) Promptly after receipt by a party to be indemnified pursuant
to the provisions of paragraph (a) or (b) of this Section 5 (an
"indemnified party") of notice of the commencement of any action
involving the subject matter of the foregoing indemnity provisions, such
indemnified party will, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of paragraph (a) or (b),
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 5 and shall not relieve the indemnifying party from
liability under this Section 5 unless such indemnifying party is
prejudiced by such omission. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
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sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i)
any Holder exercising rights under this Agreement, or any controlling
Person of any such Holder, makes a claim for indemnification pursuant to
this Section 5 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for
indemnification is such case, or (ii) contribution under the Securities
Act may be required on the part of any such selling Holder or any such
controlling Person in circumstances for which indemnification is
provided under this Section 5; then, and in each such case, the Company
and such Holder will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (including legal and other
expenses reasonably incurred in connection with or defending same
(collectively "Losses")) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement
or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 5, each person who controls a Holder within the
meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the
Company within the meaning of either the Securities Act, each officer of
the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions
of this paragraph (d); provided, however, that, in any such case, (A) no
person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such
fraudulent misrepresentation and (B) no such Holder will be required to
contribute any amount in excess of the public offering price of all such
Registrable Stock offered by it pursuant to such Registration Statement.
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Company or any of the officers, directors, employees or
agents or controlling persons referred to in Section 5
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hereof, and will survive the sale by a Holder of securities covered by a
Registration Statement.
6. Permitted Interruptions. Anything in this Agreement to the contrary
notwithstanding, it is understood and agreed that the Company shall not be
required to prepare or file a registration statement, amendment or
post-effective amendment thereto or prospectus supplement or to supplement or
amend any registration statement or otherwise facilitate the resale of
Registrable Stock, and it shall be free voluntarily to take or omit to take any
other action that would result in the impracticality of any such filing,
supplement or amendment if such action is taken or omitted to be taken by the
Company in good faith and for valid business reasons including, without
limitation, matters relating to acquisitions or divestitures, so long as the
Company shall, as promptly as practicable thereafter, make such filing,
supplement or amendment (any period described in this Section 6 (other than a
Necessary Interruption (defined below)) during which Holders of Registrable
Stock are not able to sell such Registrable Stock under a registration statement
is herein called a "Permitted Interruption"). The period between Permitted
Interruptions shall not be less than 30 days and no more than two Permitted
Interruptions may occur in any 12 month period. If any event occurs which would
make the Registration Statement then in effect materially incorrect or
misleading, the Company shall not be required to keep the Registration Statement
effective as of such date and continuing for ten business days thereafter and
the Holders of Registrable Stock shall not sell such securities during such
period (each such period is referred to as a "Necessary Interruption"). The
Company hereby agrees to notify each of the Holders of Registrable Securities in
writing of the occurrence of, and the termination of, each Permitted
Interruption and/or Necessary Interruption (the nature and pendency of which
need not be disclosed during such Permitted Interruption). Permitted
Interruptions shall not extend beyond 45 days. No Permitted Interruption shall
apply to any sales of Registrable Stock made prior to the Holder's receipt of
written notice of the Permitted Interruption.
7. Reporting Requirements Under Exchange Act. The Company shall (whether
or not it shall then be required to do so) timely file such information,
documents and reports as the Commission may require or prescribe under Section
13 of the Exchange Act. The Company acknowledges and agrees that the purposes of
the requirements contained in this Section 7 are (a) to enable any such Holder
to comply with the current public information requirement contained in Paragraph
(c) of Rule 144 under the Securities Act should such Holder ever wish to dispose
of any of the securities of the Company acquired by it without registration
under the Securities Act in reliance upon Rule 144 (or any other similar or
successor exemptive provision), and (b) to qualify the Company for the use of
registration statements on Form S-3. In addition, the Company shall take such
other measures and file such other information, documents and reports, as shall
hereafter be required by the Commission as a condition to the availability of
Rule 144 under the Securities Act (or any similar or successor exemptive
provision hereafter in effect) and the use of Form S-3. The Company also
covenants to use its best efforts, to the extent that it is reasonably within
its power to do so, to qualify for the use of Form S-3. The Company agrees to
use its best efforts to facilitate and expedite transfers of Registrable Stock
pursuant to Rule 144 under the Securities Act (or any similar or successor
exemptive provision hereafter in effect), which efforts shall include timely
notice to its transfer agent to expedite such transfers of Registrable Stock.
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8. Notices. Any notice required or permitted to be given hereunder shall
be in writing and shall be deemed to be properly given and received when given
in accordance with the Purchase Agreement, and if to any Holder not a party to
the Purchase Agreement at such Holder's address for notice as set forth in the
register maintained by the Company, or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section.
9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
10. Waivers; Amendments. No waiver of any right hereunder by any party
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and the Holders of at least two-thirds of the Registrable Stock.
11. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto. The rights of any Holder hereunder may be
transferred in connection with a transfer of the Registrable Stock. Promptly
after such transfer, the transferring Holder shall give written notice to the
Company stating the name and address of the transferee and identifying the
Common Stock with respect to which such registration rights are being
transferred and the transferee shall deliver to the Company a written instrument
by which the transferee agrees to be bound by the obligations imposed upon the
Holders by this Agreement. The Company shall not be required to perform any
obligations hereunder with respect to any transferee Holder until such
transferee Holder delivers such written instrument.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Prior Understandings. This Agreement represents the complete
agreement of the parties with respect to the transactions contemplated hereby
and supersedes all prior agreements and understandings.
14. Headings. Headings in this Agreement are included for reference only
and shall have no effect upon the construction or interpretation of any part of
this Agreement.
15. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above recited.
IXC COMMUNICATIONS, INC., a Delaware
corporation
By:
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SELLERS:
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